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[Cites 7, Cited by 0]

Delhi District Court

Vinod Kumar vs Smt. Manju on 20 December, 2023

          IN THE COURT OF SH. SUNIL BENIWAL,
             ADDITIONAL DISTRICT JUDGE­06
       SOUTH DISTRICT, SAKET COURTS, NEW DELHI.


CS DJ NO.5815/2016

CNR No.DLST01­000127­2013

VINOD KUMAR
S/o Late Sh. Brij Lal
R/o 50/1, Kalu Sarai
Near IIT Gate,
New Delhi­110016.                       .....PLAINTIFF

                               VERSUS

1.      MANJU
        W/o Late Sh. Kanhiya Lal
        R/o 50/1, Second Floor,
        Kalu Sarai, Near IIT Gate,
        New Delhi­110016.

2.      MAHESH KUMAR
        S/o Late Sh. Kanhiya Lal
        R/o B­42, Gali No.17,
        Rama Vihar, Begum Pur,
        Rohini, Delhi­110081.

3.      GOVIND KUMAR
        S/o Late Sh. Kanhiya Lal
        R/o B­42, Gali No.17,
        Rama Vihar, Begum Pur,
        Rohini, Delhi­110081.

4.      GOPAL
        S/o Late Sh. Kanhiya Lal
        R/o 50/1, Second Floor,
        Kalu Sarai, Near IIT Gate,
        New Delhi­110016.



CS DJ No.5815/16
Vinod Kr vs. Manju & Ors
                                                       Page 1 of 21
 5.      SONA DEVI (deleted as expired)
        W/o Late Sh. Brij Lal
        R/o 50/1, Kalu Sarai,
        Near IIT Gate, New Delhi­110016.           .....DEFENDANTS

        Date of Institution          :      28.05.2013
        Date of Arguments            :      19.12.2023
        Date of Judgment             :      20.12.2023


 SUIT FOR DECLARATION, POSSESSION, DAMAGES AND
             PERMANENT INJUNCTION


JUDGMENT

1. The present suit has been filed by the plaintiff against the defendants for the relief of declaration, possession, damages and permanent injunction.

2. It is pleaded in the plaint that father of the plaintiff - Late Sh. Brij Lal during his lifetime earned and acquired two properties i.e. property bearing No.262, Bal Mukand Khand, Giri Nagar, Kalkaji, New Delhi and property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016. It is further pleaded that Late Sh. Brij Lal was survived by two sons namely Sh. Kanhiya Lal and Sh. Vinod Kumar and six daughters namely Shanti Devi, Janki Devi, Kamla Devi, Vimla Devi, Raj Rani and Lata Rani. During the lifetime of Sh. Brij Lal, a family settlement dated 19.09.1988 was entered between the Sh. Kanhiya Lal, Sh. Brij Lal and Smt. Sona Devi, mother of plaintiff and Sh. Kanhiya Lal) and to the said family settlement, their sisters did not have any objection. As per the said CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 2 of 21 settlement and at request of Sh. Kanhiya Lal, the sale proceeds of property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi­110019 were retained by Sh. Kanhiya Lal. At that time, Sh. Kanhiya Lal executed another agreement in extension of the aforesaid family settlement wherein Sh. Kanhiya Lal confirmed of retaining the sale proceeds of the aforesaid property. The said agreement further confirmed that Sh. Kanhiya Lal did not lay any claim over the property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi (hereinafter referred to as 'suit property') in continuation of the family agreement and documents to that effect were executed between the plaintiff and Sh. Kanhiya Lal. Now, the plaintiff is in possession of Ground, First and Terrace of the third floor of the suit property.

3. It is further pleaded that thereafter Sh. Kanhiya Lal shifted to property bearing No.3888, Gali Neemwali, Kala Mahal, Darya Ganj, New Delhi and subsequently shifted to property bearing No. B­42, Gali No.17, Rama Vihar, Begum Pur, Rohini, Delhi­ 110081. Sh. Kanhiya Lal lived there till his last days and left for heavenly abode in the year 2004. It is averred that Sh. Kanhiya Lal was survived by defendant no.1 to defendant no.4 who are his widow and sons. Defendant no.1 had filed a suit for permanent injunction which was decreed in her favour. It was further averred that Smt. Sona Devi, being the mother of plaintiff and Sh. Kanhiya Lal and widow of Sh. Brij Lal has been staying with plaintiff and she was the signatory to the aforesaid family settlement.

CS DJ No.5815/16

Vinod Kr vs. Manju & Ors Page 3 of 21

4. It was further averred that defendant no.1 to 4 had an evil eye on the suit property and as such, they hatched a conspiracy with each other. Initially, they sent two persons claiming themselves to be the student who expressed their desire to take the second floor of the suit property on rent for which they offered Rs.4,000/­ per month. The plaintiff agreed to their offer and as such, they had given bayana of Rs.600/­ and assured the plaintiff to pay the balance amount within a week. The plaintiff did not suspect any foul play and allowed the decoy tenants to keep their luggage on the second floor of the suit property. The plaintiff also handed over the keys of the second floor to those persons. They informed that they were leaving for their home town and would come within 2­3 days and pay the balance amount. However, immediately thereafter on 25.05.2006, the defendants barged inside the suit property. It was averred that the litigation filed seeking injunction against illegal dispossession was decreed in favour of defendant no.1.

5. Plaintiff has pleaded that defendant no.1 to 4 have no legal right to continue their possession as by way of family settlement, their share has already been defined and acted upon and more so, Sh. Kanhiya Lal, husband of defendant no.1 and father of defendant no.2 to 4 has already enjoyed the fruit of settlement by retaining the entire sale proceeds with regard to property at 262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi. Therefore, the legal heirs of Sh. Kanhiya Lal have no right, title or interest left in the suit property. Plaintiff has averred that defendant no.1 to 4 are also raising illegal construction on the second floor of the suit property which is CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 4 of 21 without any authority or sanction and is causing cracks in the entire building and the same is detrimental to the structural safety and stability of the suit property. In this regard, plaintiff made complaint to the concerned authorities but no action has been initiated. Being constrained by the illegal activity and possession of defendants, the plaintiff sent a legal notice dated 13.05.2013 to which the defendants sent a misconceived reply dated 21.05.2013. By way of said legal notice, the right to stay in the premises also stands termination and thus, defendant no.1 to 4 are liable to pay damages at the market rent.

6. In the plaint, it is stated that the cause of action first arose on 13.05.2013 when legal notice was sent and then on 21.05.2013 when the defendants sent a reply and refused to hand over the possession of the suit property and it continues to arise on each day as the defendants are continuing their illegal possession without any right or authority. The suit property is situated within the territorial jurisdiction of this Court and the suit is property valued for the purpose of Court fees.

7. By way of present suit, the plaintiff prayed for the following reliefs :­

(i)decree of declaration thereby declaring the plaintiff as owner of the suit property i.e. property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016;

(ii)decree of possession with respect to second floor of the suit property i.e. property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016;

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Vinod Kr vs. Manju & Ors Page 5 of 21

(iii)decree for damages and mesne profit, after enquiry by the Court under Order 20 Rule 12 CPC pendente­lite and future till the defendants actually vacate and handover the possession of the suit property to the plaintiff;

(iv)decree of permanent injunction thereby restraining the defendants, their assignees, agents, representatives, etc., from peaceful interference and enjoyment with respect to the suit property i.e. property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016.

8. Summons of the suit were issued to the defendants. Defendant no.1 to 4 filed a consolidated written statement and defendant no.5 filed a separate written statement. In their written statement, defendant no.1 to 4 have raised preliminary objections; that the plaintiff without any title has let out the ground floor of the suit property and is getting the rent which he never contributed with the defendants and he failed to disclose this fact; that the plaintiff has no locus standi to file the present suit; that the present suit is liable to be dismissed for mis­joinder of parties as the plaintiff has not made the daughter of late Sh. Kanhiya Lal as party to the present suit; that the plaintiff has not come to the Court with clean hands and suppressed material facts that a suit bearing No.1134/06 titled Manju vs. Vinod Kumar has already been decreed ide judgment dated 31.03.2011 whereby the plaintiff Vinod Kumar was directed not to interfere in the possession of Ms. Manju of the second floor and that no cause of action has arisen ever in favour of the plaintiff.

CS DJ No.5815/16

Vinod Kr vs. Manju & Ors Page 6 of 21

9. On merits, it is submitted that the property bearing No.262, Bal Mukand Khand, Giri Nagar, Kalkaji, New Delhi is in the name of Late Sh. Brij Lal and the other property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016 is in the name of husband of the defendant and the electricity connection is also in the name of husband of defendant no.1. The execution of family settlement dated 19.09.1988 is denied. It is submitted that Late Sh. Kanhiya Lal has never sold any property but it is the plaintiff who has sold the property with fake signature with a sole motive to grab the suit property. It is further submitted that the entire story cooked up by the plaintiff is false and fabricated as the defendant is residing in the suit property since her marriage and all her children are born in the said house. It is also submitted that defendants have never raised any illegal or unauthorized construction over the suit property. It is submitted that the suit of the plaintiff is false and frivolous and thus, the same is liable to be dismissed.

10. In her written statement, defendant no.5 - Smt. Sona Devi who is the wife of Late Sh. Brij Lal/ mother of plaintiff and husband of defendant no.1 - Late Sh. Kanhiya Lal. In her written statement, she has stated that she is residing with the plaintiff. Defendant no.5 has admitted that during the lifetime of her husband late Sh. Brij Lal, a family settlement was arrived on 19.09.1988 to settle the distribution of properties between brothers/ her sons and she was one of the signatory to the said settlement. Further, in her written statement, she has admitted all the averment made in the plaint by the plaintiff.

CS DJ No.5815/16

Vinod Kr vs. Manju & Ors Page 7 of 21

11. The plaintiff filed replication to the written statement of defendant no.1 to 4 wherein he has controverted all the contentions raised in the written statement and reiterated the averments of his plaint.

12. On completion of pleadings, the following issues were framed for trial by the Ld. Predecessor vide order dated 23.04.2014 :­

1. Whether during the lifetime of late Brij Lal, a family settlement dated 19.09.1988 was entered into between the plaintiff, Late Kanhiya Lal, Smt. Sona Devi and Brij Lal himself? If yes, its effect? OPP

2. Whether the property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016 was owned by Late Brij Lal? OPP

3. Whether the property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi­110019 fell to the share of Late Kanhiya Lal was sold and its sale proceeds were retained by him and it was confirmed that he shall not lay any claim over property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­ 110016? OPP

4. Whether the defendants no.1 to 4 have no legal right to continue their possession in the property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­ 110016? OPP

5. Whether the defendants no.1 to 4 were raising illegal construction on the second floor of property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­ 110016 without any authority or sanction which is liable to be stayed by way of decree of permanent injunction? OPP

6. Whether the plaintiff is entitled to any relief.

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Vinod Kr vs. Manju & Ors Page 8 of 21

13. It is relevant to mention here itself that vide order dated 15.01.2014, defendant no.5 was proceeded exparte as none had appeared on her behalf.

14. In support of his case, the plaintiff has examined 14 witnesses including himself. PW1 is the plaintiff himself, PW2 is Smt. Lata, PW3 is Smt. Kamla Devi, PW4 is Smt. Raj Rani, PW5 is Smt. Bimla Devi, PW6 is Smt. Shanti Devi, PW7 is Smt. Janki Devi, PW8 is Mr. Sunil Kumar, Nodal Officer, MTNL, CGO Complex, New Delhi, PW9 is Mr. Sanjeev Kumar, Lineman Associate, BSES Rajdhani Power Limited, Saket Adhchini, New Delhi, PW10 is Constable Sandeep Kumar, Record Keeper of PS Malviya Nagar, PW11 is Mr. Jasbir Singh, Head Clerk, ZRO (Water) South III, Greater Kailash, New Delhi, PW12 is Mr. Vashi­Ul­Hassan, neighbour of plaintiff, PW13 is Mr. Malkeet Singh, neighbour of plaintiff and PW14 is Mr. Sridhar Tiwari, MTS, Record Rajputana Rifles, Delhi Cantt., New Delhi. The plaintiff's evidence was closed on 09.03.2016.

15. On the other hand, to prove their defence, the defendants no.1 to 4 have examined only Smt. Manju as DW1 though the evidence affidavits of other three defendants are also placed on record. Defendants' evidence was closed on 31.01.2023.

16. I have heard Ld counsel for the parties as well as gone through the record.

17. My issue wise findings are as under:

18. Issue No.1 reads as under:

(1)Whether during the lifetime of late Brij Lal, a family CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 9 of 21 settlement dated 19.09.1988 was entered into between the plaintiff, Late Kanhiya Lal, Smt. Sona Devi and Brij Lal himself? If yes, its effect? OPP

19. The onus to prove this issue was upon the plaintiff. Plaintiff entered into witness box as PW1 and tendered his evidence by way of affidavit Ex.P­1. Plaintiff has filed and relied upon Agreement of Family Settlement dated 19.09.1988 exhibited as Ex.P­4. Plaintiff Vinod Kumar, late Sh. Kanhiya Lal, defendant no.5 Smt. Sona Devi and late Sh. Brij Lal are executant of said family settlement and the same is further duly signed by the witnesses. PW1 during cross­examination specifically stated about family settlement having been signed by him, his brother, his mother and two witnesses. PW1 was cross­examined at length by Ld counsel for the defendants no.1 to 4 but nothing came during his cross­examination to contradict the pleading of the plaintiff about execution of family settlement Ex.P­4. During cross­examination, no suggestion was given to PW1 regarding validity, non­execution, forged or fabrication of family settlement. Ex.P­4. Further PW2, PW3, PW4, PW5, PW6 and PW7 all sisters have supported the case of the plaintiff regarding execution of family settlement Ex.P­4.

20. DW1 during her cross­examination stated that she is not aware about any family settlement dated 19.09.1988, however, she identified signatures of her husband upon the same.

21. In view of above, it is held that during the lifetime of late Brij Lal, a family settlement dated 19.09.1988 exhibited as Ex.P­4 was entered into between the plaintiff, Late Kanhiya Lal, Smt. CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 10 of 21 Sona Devi and Brij Lal.

22. Issue no.1 is decided in favour of the plaintiff.

23. Issue no.2 reads as under:

(2)Whether the property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016 was owned by Late Brij Lal?

OPP

24. Version of the plaintiff is that late Sh. Brij Lal i.e. his father had acquired the suit property. Whereas stand of the defendants no.1 to 4 is that suit property is in the name of husband of defendant no.1 namely late Sh.Kanhiya Lal.

25. PW1 during his cross­examination has stated that earlier house tax was being collected in the name of his father and thereafter it was assessed in his name. He further stated that he had written a letter to MCD for mutation and filed a copy of settlement deed and as such house tax came in his name. However, no document has been filed on record regarding mutation of property in the name of late Sh.Brij Lal or in the name of plaintiff/PW1 Sh. Vinod Kumar. No witness from MCD or any concerned department was called and examine by plaintiff in support of his version. Further, it is settled principle of law that mutation of any property in MCD is only for the purpose of collection of taxes and does not confer title of the property upon any person. No party to the suit has filed any title document, conferring title of the suit property in the name of late Sh.Brij Lal.

26. Plaintiff has failed to prove by way of any documentary CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 11 of 21 evidence that late Sh.Brij Lal was the owner of the suit property. The deposition of PW1 including other witnesses examined and the documents on record do not prove that late Sh.Brij Lal was the owners of the suit property. Accordingly, I hold that the plaintiff has failed to prove that late Sh.Brij Lal was owner of the suit property.

27. The issue is accordingly decided adverse to the plaintiff.

28. Issue No.3 reads as under:

(3)Whether the property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi­110019 fell to the share of Late Kanhiya Lal was sold and its sale proceeds were retained by him and it was confirmed that he shall not lay any claim over property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016? OPP

29. Onus to prove this issue was upon plaintiff. In the para 1 of Agreement of Family Settlement Ex.P4 it is agreed between the parties that property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi does stand transferred to 1 st party i.e. Sh. Kanhiya Lal s/o Sh. Brij Lal and he had been authorised to sell, mortgage and transfer the property and receive money in respect of the sale proceeds thereof. There is further an handwritten agreement dated 19.09.1988 regarding distribution of money exhibited as Ex.P5 duly signed by plaintiff Sh. Vinod Kr and late Sh.Kanhiya Lal, wherein it is specifically written that sale proceeds after sale of property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi has been CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 12 of 21 received by Sh.Kanhiya Lal. It is further written therein that Sh. Vinod Kumar has not received any money from Sh. Kanhiya Lal. It is also written therein that Sh. Kanhiya Lal shall not lay any claim over property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016.

30. Ld counsel for the defendants no.1 to 4 did not cross­examine PW1 to contradict the version of plaintiff on the aspect of sale proceeds of property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi being retained by Sh. Kanhiya Lal. However, PW1 during cross­examination has specifically stated that "There was a compromise between my brother and myself before the sale of property no.262, Bal Mukund Khand, Kalkaji, New Delhi. The compromise took place just before my father signed the sale documents of aforementioned property. The agreement Ex.P4 was also prepared on the same day". Furthermore PW2, PW3, PW4, PW5, PW6 and PW7 in para 5 of their evidence affidavits have specifically stated that sale proceeds of Rs.1.6 lakh was retained by Sh. Kanhiya Lal and that Sh. Kanhiya Lal shall not lay any claim over the property bearing No.50/1, Kalu Sarai, near IIT Gate, New Delhi. Said witnesses were duly cross­examined by Ld counsel for the defendants no.1 to 3 but did not bother to put any question to controvert the version of plaintiff that sale proceeds were retained by Sh. Kanhiya Lal and that Kanhiya Lal shall not lay any claim over property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016 - may be for the reason that reply of witnesses will be in affirmative and destructive to the defence of the defendants no.1 to 4.

CS DJ No.5815/16

Vinod Kr vs. Manju & Ors Page 13 of 21

31. In view of above discussion, it is held that sale proceeds of property bearing No.262, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi­110019 were retained by Sh. Kanhiya Lal and it was confirmed that he i.e. Kanhiya Lal shall not lay any claim over property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016.

32. Issue no.3 is decided in favour of the plaintiff.

33. Issue no.4 reads as under:

(4)Whether the defendants no.1 to 4 have no legal right to continue their possession in the property bearing No.50/1, Kalu Sarai, near IIT Gate, New Delhi­110016? OPP

34. Plaintiff has contended that pursuant to family settlement Ex.P­ 4, the suit property has come into share of the plaintiff. It is further contended that on 25.05.2006, defendants no.1 to 4 had barged into suit property. It is further contended that defendant no.1 had filed a suit against the plaintiff bearing suit no.1134/2006 titled as Manju v. Vinod Kumar and in the said suit an ex­parte decree of permanent injunction dated 31.03.2011 had been passed against the plaintiff herein by the Court of Sh. Vikram, Ld. Civil Judge (North), Tis Hazari Courts, Delhi. It is further contended by plaintiff that decree does not restrict or debar the plaintiff from seeking relief, however, only protection was granted to the defendants as the plaintiff was proceeded exparte and the said judgment is an exparte judgment.

35. It is further stated in replication that Sh. Brij Lal was given Lal CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 14 of 21 Dora certificate in the year 1977 and it was never in the name of husband of defendant no.1. It is also contended that Sh. Brij Lal had installed electricity connection in the name of late Sh. Kanhiya Lal in old number of property 47/A, which was disconnected due to non payment and then Sh.Brij Lal got the electricity connection in his name which was transferred in the name of plaintiff in the year 2005. It is further stated by plaintiff that late Sh. Kanhiya Lal at the time of his death lived in the property bearing no.B­42, Gali No.17, Rama Vihar, Begumpur, Rohini, Delhi and the same is evident from death certificate of late Sh.Kanhiya Lal filed by the defendants.

36. It is further stated by plaintiff in replication that defendant no.1 had left Kalu Sarai property in the year 1975 after her marriage with Sh. Kanhiya Lal and shifted to property no.262, Bal Mukund Khand and thereafter lived in property no.3888, Gali Neemwali, Kala Mahal, Darya Ganj, New Delhi and subsequently shifted to B­42, Gali No.17, Rama Vihar, Begumpur, Rohini, and had forcibly occupied second floor of suit property on 25.05.2006.

37. Version of the defendants no.1 to 4 is that Sh. Kanhiya Lal husband of defendant no.1 is the owner of the suit property. They also denied family settlement Ex.P­4. Defendant no.1 contended that she is residing in the suit property since the inception of her marriage. She further contended that as per form of verification made with Embassy of the United States of America on 15.07.1997, defendants are residing in the suit property.

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Vinod Kr vs. Manju & Ors Page 15 of 21

38. During cross­examination PW1 admitted that a matter U/s 138 NI Act is pending trial against him and the cheque in question amounting Rs.6,00,000/­ was issued in the name of defendant no.1 Manju. He voluntarily stated that he was told that defendant no.1 would vacate the suit property in lieu of said amount. He denied the suggestion that the dispute regarding this property had arisen only after the cheque issued by him got bounced. Judgment passed in earlier suit No.1134/2006 reveals that Vinod defendant therein had taken plea in his Written Statement therein that when he had approached police, under the influence of plaintiff and police, he was forced to sign on some blank papers and on one cheque. Neither plaintiff nor defendants have raised this plea regarding issuance of said cheque by plaintiff in favour of defendant to settle the property dispute and this fact came into light for first time during during cross­examination of PW1. There is no explanation as to why such facts were not made part of the pleadings.

39. It appears that parties to the suit have not approached the Court with clean hands and are suppressing material facts from the Court.

40. It is case of the plaintiff that had he had given suit property on rent to some boys who had came on the instructions of defendants and said boys had left for their native place and in between defendants no.1 to 4 forcefully entered into suit property. However, plaintiff failed to produce any document like rent agreement, receipt, police verification report regarding tenants etc in support of his contention.

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Vinod Kr vs. Manju & Ors Page 16 of 21

41. In the Suit no.1134/2006 titled as Manju v. Vinod Kumar an ex­parte decree of permanent injunction dated 31.03.2011 had been passed against the plaintiff herein by the Court of Sh. Vikram, Ld. Civil Judge (North), Tis Hazari Courts, Delhi. Whereas present civil was filed by plaintiff Vinod Kr on 28.05.2013. It is strange that plaintiff herein though had filed Written Statement in suit no.1134/2006 but did not choose to lead evidence and had chosen to let the said case to be decreed exparte and later on in the year 2013 has filed the instant suit. There is no explanation from the side of the plaintiff as to what prevented him from prosecution earlier suit no.1134/2006 and even to file appeal against ex­parte judgment and decree, and thereafter suddenly woke up from sleep and filed the instant suit in the year 2013.

42. Plaintiff in support of his case has examined PW12 who filed his evidence affidavit Ex.PW12/A stating that defendant Manju Devi had entered into suit property on 25.05.2006 forcefully. However, during cross­examination he stated that he does not know the property number of Vinod Kumar though which is adjoining to his property. He further stated that he had not seen any document in favour of plaintiff Vinod Kr in respect of suit property in which he is residing.

43. This witness is neighbour of plaintiff. He even does not know number of the suit property and even had not seen any document in favour of plaintiff Vinod. Deposition of this witness cannot be relied upon for any purpose in view of his answers in cross­examination. He seems to be interested CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 17 of 21 witness being neighbour of plaintiff. No reliance can be placed on his evidence.

44. PW13 filed his affidavit evidence Ex.PW13/A stating that he is owner of shop no.50/1, Ground Floor, Kalu Sarai and neighbour of plaintiff Vinod Kr. He stated to have purchased said shop from father of Vinod Kumar in the year 1990. He stated that defendant Manju Devi forcefully entered into suit property on 25.05.2006.

45. During cross­examination PW13 has stated that before purchase of suit property, he had seen property papers in favour of Vinod Kumar and his father Brij Lal. He further stated that house tax of above property was in the name of Vinod Kumar. However, perusal of record shows that no such documents as stated by PW13 regarding suit property have been filed on record. Deposition of this witness also cannot be relied upon for any purpose in view of his answers in cross­examination. He also seems to be interested witness being neighbour of plaintiff. No reliance can be placed on his evidence.

46. Plaintiff has summoned PW8 who had brought original customer account form of plaintiff dated 08.04.2006, along photocopy of Voter identity card, PAN card and electricity bill having address of suit property as Ex.PW8/1. Plaintiff also examined PW9 from BSES who had brought electricity bill and other documents pertaining to suit property in the name of plaintiff as Ex.PW1/9. PW11 was summoned from Delhi Jal Board who had proved water connection in the name of plaintiff as on 16.12.2004. PW10 record keeper from PS CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 18 of 21 Malviya Nagar deposed regarding destruction of summoned record i.e. complaints filed by plaintiff. PW14 from Record, Rajaputana Riles deposed regarding forwarding complaint to SHO PS Malviya Nagar and Delhi Jal Board. Evidence and documents proved by these formal witnesses were examined and the same were not found of much relevance to the controversy involved and the issues framed to be adjudicated by the Court.

47. Perusal of the record reveals that there is no property documents in respect of suit property has been filed by any party to the suit. Status of the property is not clear as to who is actual owner and title holder of the suit property. Photocopies of electricity bills, water bills and ration card relied upon by the plaintiff does not confer title of the suit property to any party.

48. Parties have not approached the Court with clean hands and are suppressing material facts. Parties who have approached the Court with unclean hands and suppressing material facts does not deserve any relief.

49. In view of above discussion, issue is decided adverse to the plaintiff.

50. Issue No.5 reads as under:

(5)Whether the defendants no.1 to 4 were raising illegal construction on the second floor of property bearing No.50/1, Kalu Sarai, Near IIT Gate, New Delhi­110016 without any authority or sanction which is liable to be stayed by way of decree of permanent injunction? OPP CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 19 of 21

51. It is stated by plaintiff in the plaint that defendants no.1 to 4 were raising illegal construction on the second floor of the suit property without any authority or sanction, for which complaints were sent to concerned authorities but no action was taken. Defendants no.1 to 4 in their Written Statement have denied that they raised any illegal and unauthorised construction. Onus to prove this issue was upon the plaintiff. Plaintiff had made a bald statement that defendants no.1 to 4 were raising illegal construction. However, perusal of the record reveals that plaintiff has failed to prove on record any document admissible in evidence to show that defendants no.1 to 4 had raised illegal and unauthorised construction at the suit property. Furthermore plaintiff did not specify date, nature and extent of alleged unauthorised construction being carried out by defendants no.1 to 4. There are certain photographs lying in the judicial file of some property, which were filed during proceedings, but from said photographs it cannot be ascertained as to whether any unauthorised construction is going or not and even there is nothing in the photographs to ascertain that it actually is the suit property and as to who is carrying on construction, if any.

52. Accordingly issue no.5 is decided adverse to plaintiff.

53. In view of the findings returned above, this Court is of the considered opinion that plaintiff failed to prove that he is entitled for the reliefs prayed for in the plaint and the plaint deserves to be dismissed.

CS DJ No.5815/16

Vinod Kr vs. Manju & Ors Page 20 of 21 Relief

54. In view of above, suit of the plaintiff is dismissed.

55. No order as to cost.

56. Decree sheet be prepared accordingly.

57. File be consigned to record room.

Announced in the open court on 20.12.2023.

(Sunil Beniwal) Additional District Judge­06(South), Saket Courts, New Delhi/20.12.2023 CS DJ No.5815/16 Vinod Kr vs. Manju & Ors Page 21 of 21